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“Original intent” doesn’t mean anything if the Constitution is incoherent

This fall I’m teaching, among other things, Constitutional law, an area I did not study while in grad school for my Ph.D. in political science.  However, it has allowed me to reconnect with some of the ideas I turned over in my head 10 years ago in law school, and I was reminded of an interesting discussion I had with several classmates while preparing for tomorrow’s class on the modern Commerce Clause.  It has to do with the validity of the jurisprudential theory of original intent.

Some people argue that attempting to identify the “original intent” of a document drafted and ratified by multiple authors is impossible because the different actors involved may have had different intents and it is impossible to determine a way to give priority to one of these intents over another.  That’s not the argument I have in mind.  The problem I want to raise is that it is quite possible that none of the drafters had a single “intent” at all.  The Constitution is a political document produced through negotiation between parties with very different objectives.  As anyone who has ever engaged in any negotiation knows, the parties give a little in one area to get more in another area in order to come to some final agreement.  As the product of this kind of process, there is no reason to believe that the Constitution is coherent the way that we could expect of a philosophical document produced by a single mind.  The horse trading that led to the simultaneous creation of the Commerce Clause, the Necessary and Proper Clause, the Supremacy Clause, and the Tenth Amendment may therefore not have produced any coherent meaning, but only a balance of different arguments that can be drawn upon by judges (and Congress) to use in their best judgment to deal with the “inevitable crises of human affairs” as Justice Marshall put it.

However, if true, then originalism cannot work as a theory of Constitutional interpretation.  One can’t find the original meaning of a document if there is no original meaning in it.  Recognizing the political nature of the Constitution ought to lead one closer to the legal realism espoused by Dworkin, and away from the strictures original intent.

Systemic effects of the Iraq War

With the 10 year anniversary of the start of the Iraq War upon us there have been quite a few blog posts about why it happened the way it did and what the consequences were.  I want to reply to one such post by Dan Drezner.  Drezner argues that while the Iraq War was a tragic boondoggle, it did not have major effects on the international system.  I’m not convinced and I want to say why.

To begin it’s necessary to quote what Drezner says about counterbalancing:

Realists were convinced that the largely-but-not-completely unilateral act of preemption by the United States should have triggered significant amounts of blowback. The great powers that opposed the invasion should have formed a balancing coalition against a revisionist United States. That did not happen. Furthermore, all the realist yapping about “soft balancing” looks pretty absurd in retrospect. There is no doubt that the United States suffered a few years of some serious unpopularity — but that temporary dent ended very quickly after the 2008 election.

In essence I think Drezner’s time frame is too short and his measures too crude to know whether the war produced a serious international response.

The realist view on balancing is that when a state becomes sufficiently threatening, other states in the international system will band together to “balance” it.  Napoleonic aggression in Europe led to an alliance of states against it, German aggression likewise, and so on.  Structural realists like Kenneth Waltz argue that states balance against powerful states, i.e. that when any state becomes substantially more powerful than others within a system those others will ally against the hegemon, essentially because they can’t trust a hegemon to be benign.  Stephen Walt, however, has argued that history shows that states don’t balance against power so much as they balance against threat.  The alliances against Germany and perhaps the Soviet Union were motivated less by the desire to maintain an international balance of power than to contain what were perceived as aggressive, threatening states.

Drezner says that since no anti-American alliance was created after the Iraq War, the fact that the U.S. started that war was not sufficiently scary to most states to lead them to reappraise their assessments of how threatening the United States was/is.  I’m not convinced we know that or can know it yet.  Drezner’s measure for whether this occurred or not was the creation of a balancing coalition, but that’s a pretty blunt measure.  It might be that the invasion did lead to a reappraisal of how threatening the United States is but we just haven’t seen the evidence yet.  It may be the case that the power difference in the mid-00s was too great for such a coalition to have been feasible, but as the power differential narrows over time, assessments of American threat left over from the Iraq invasion will stay in policymakers’ minds as they consider possible strategies for pursuing their interests.  If this were true, the systemic effects of the Iraq War would not necessarily be felt until many years after the invasion.

So if you’re a policymaker in Brazil or China or Russia you might be thinking about how best to achieve your goals in international politics and you might consider the options of working within the liberal order created by the U.S. or instead challenging that order with some alternative alliance / set of alliances.  Which path you choose depends significantly on how threatening you think the U.S. is – how likely is it that the U.S. will exploit its power advantage in the future – because if you work in the American-led system you will exposing yourself to the possibility that the U.S. could take advantage of you.  When you see evidence that the U.S. is willing to press its power advantage against Iraq, disregarding international law and international public opinion in the process, you might update your beliefs about just how benign the U.S. is likely to be as a hegemon.  So you husband your strength and now look for the first opportunity to leave the American order, which might not be for many years.  However, if the U.S. had not invaded Iraq, you may conclude that the international liberal order is safe enough to rely on for the pursuit of your national objectives and you would therefore be more willing to support and integrate into that system rather than challenge it.

Whether this view I am advancing here is plausible or not depends on how likely you think it is that there could ever be a global security community, something like a Kantian federation of republics.  I freely admit it was never a likely outcome for the international system, but it was the best shot to avoid the cycle of system-wide cataclysmic wars that has been observed since the creation of the state system.  My guess is that whatever small chance there was for such a hopeful future was significantly diminished by the invasion of Iraq, and that should be considered to be an important effect on the international system.

Preparing students to change the world

A former student of mine was accepted into the Peace Corps last fall, and she recently wrote a nice blog post explaining why she made the decision to give over these years of her life to such a demanding and unconventional job.  I link to it not only because she says some nice things about me but also because it raised an issue I’ve been thinking about on and off since the Kony episode early last year.  I think we college teachers often don’t do a very good of encouraging people to try to make positive change in the world because we want to highlight the complexities that are our expertise.

I wrote about this at length a few months ago.  The point I want to add in this post relates to finding materials that are accessible to students but that do not necessarily meet the highest academic standards.  If you read Alecia’s post you’ll see that my recommendation to her of Nicholas Kristof’s book “Half the Sky” was a pivotal point in her transition from a conventional college career toward thinking about a life of public service.  Alecia is better off for having reading Kristof, and the world is better off for Alecia having read Kristof.  However, if you keep up with the international relations / comparative politics blogosphere, you know that Kristof gets only slightly less haterade dumped on him than Tom Friedman.  Kristof is frequently held up as the one of the worst examples of the White Savior’s Industrial Complex, presenting complex problems as overly simple and proposing solutions that take agency away from local activists and instead point to rich white people parachuting in and solving them by just caring enough.  I have the impression that many of these critics think that Kristof’s reporting is unredeemable and that the subjects of Kristof’s essays would be better off if he had never written about them.

So Kristof is simplistic and patronizing, but he also gets people interested and energized about issues of global justice.  What should we make of this?  On the one hand, many of these critics are world-class development experts and I believe them when they point out the shortcomings of Kristof’s proposed solutions to justice problems.*  On the other hand, Kristof makes these issues more engaging than we social scientists usually can, and he does a much better job of inviting non-experts to think of themselves as participants in global justice issues.  This latter point is key because I think it is the area where college educators most frequently lose students that might otherwise take an interest in issues of human rights and/or global development.

I see two issues here.  The first is that our theories of the world privilege large impersonal forces, like structure, institutions and culture that we individuals don’t have much influence over, and one of the main reasons for this is simply that individuals are hard to observe.  In a student’s mind, however, this can turn into an absence-evidence-is-evidence-of-absence thing where they think individuals genuinely don’t matter.

The second, and more relevant to this post, is that the attitude toward students (and citizens and even policymakers) too often seems to be that they are simply too likely to screw up and that therefore we should try to stop them from taking any action on human rights or poverty issues.  At the very least this is what comes across when a student excitedly says they just read or heard something by Kristof or Jeffrey Sachs or even Bono and now they want to do something.  I know the criticisms of these populizers like the back of my hand because I see them so often in the twitter/blogosphere, but I almost never see a productive discussion of how these newly energized students (and there are few people more energized than intellectually stimulated 20 year olds) can direct their energies into effective activism.

At its worst, I wonder if part of the reason for this is merely an attempt by some experts to preserve their status as experts.  The failure of the human rights and development communities to identify a scaffolded process to bring the interested public into their work  only supports this.

The upshot is that we can use these populizers for what they are good at, and then, as in Alecia’s case, leverage this enthusiasm by supporting it with some of the stronger academic and policy work on achieving international justice.  In order to do this more effectively, the human rights and development communities ought to spend more time figuring out ways to say more than “don’t do _x_” and be able to identify productive things that people can do when they interested in “our” issues.

Oh, and remember Alecia’s name.  She’s very smart, hard-working and passionate – she’s going to do things.

* I am going to avoid dropping any names in this post in an attempt to avoid unnecessary trouble

 

Confirmation bias in the study of human rights

Jay Ulfelder published a post today about what he called “advocascience” – when political scientists have an ideological agenda and this potentially ends up biasing their results.  In a connection that I think is interesting, he analogizes this phenomenon to cases where researchers have financial conflicts of interests with their research – a bioresearcher may skew results if s/he thinks it might be lucrative, a political scientist may skew his/her results if that will support a favored normative position or policy prescription.

Ulfelder says sometimes this skew comes from publishing in a forum that favors a particular position (e.g. the National Endowment for Democracy) or because the scholar may want not want to offend a source or some other person s/he has a relationship with (this episode of RadioLab comes to mind as an illustration of that), but it may also come from the scholar sub-consciously interpreting the results in a way that s/he favors.

This is something that comes up a lot in discussions between grad students and faculty at my program at the University of Nebraska, and I think the reason is because NU is a human rights program, and human rights scholarship is a bit sensitive to the problem because of the findings in Hafner-Burton and Ron’s 2009 paper “Seeing Double: Human Rights Impact Through Qualitative and Quantitative Eyes.”  Ungated version here.  They find that qualitative research on the efficacy of human rights law is significantly more optimistic about the effectiveness of human rights law than quantitative research.  One of the reasons they propose for this is that qualitative researchers sometimes privilege cases where human rights appear to work, whether in case selection or in interpretation of data.

The general consensus that has emerged in our grad student bull sessions is that this is not a problem with qualitative research per se – most of us, including me, use qualitative methods in our research – but that this potential bias is something to be aware of when we do our research.

A person does not start studying human rights unless they want to identify ways to change the world for the better.  However, wanting something to be so does not make it so, and we scholars do not do anyone any favors by describing the world incorrectly.

Dan Drezner and Dan Nexon on blogging by academic political scientists

The link is here.

This is an interesting discussion if you have time to listen to it.  It reminded me of how I wish I blogged more – I think they’re right that it would make me a better writer and a better academic.  This is one of those things that probably has to be ingrained as a habit.  It’s probably worthy of late new year’s resolution.

Things I liked from 2012

I’m seeing a lot of blog posts today taking a retrospective look at 2012, so I thought I’d make a list of some of my favorite web finds from the year.

Favorite Blog Post: Xavier Marquez “The Great Norm Shift and the Triumph of Universal Suffrage

See also “A Very Short Quantitative History Democracy, Dictatorship and Other Political Regimes

Another favorite blog post: Jay Ulfelder “211 Years of Political Evolution in 60 Seconds

Favorite academic book: Francis Fukuyama, “The Origins of Political Order

Favorite fun book: Neil Gaiman, “American Gods

Favorite New Band / Album: Divine Fits / “A Thing Called Divine Fits”

Favorite music video: Woodkid, “Run Boy Run

Favorite podcast: Freakonomics, “The Upside of Quitting” (recorded in 2011, but I heard it this year)

Favorite Tweet: Jessica Link, commentary on presidential debates 

Favorite Tumblr: When in Academia

Favorite Meme: Grumpy Cat

Favorite funny video: Dragon Baby 

A few thoughts on technology and future of higher education

Those who know me know that I have a slight obsession with the possibilities for technology to revolutionize higher education, so I lapped up this weekend’s bounty of articles about the topic from the New York Times Magazine and the Washington Monthly.  What I learned is to not expect the revolution to come soon.  By all appearances the people with the resources to lead the shift – venture capital in Silicon Valley – don’t understand what they are doing, and that leaves us waiting for the universities and publishers to take action, which might be awhile coming because their interests are more for evolution than revolution.

The problem is that, at least according to the Washington Monthly article, Silicon Valley is imagining online higher education being something like Facebook or Ebay.  The idea is for the tech companies to create “platforms” and then users will generate free content that other users will then want to view, and the techies then monetize with advertising or user fees.  Anyone in academia can tell you there is a huge problem with this business model: the people with the expertise to make the content (courses) lack the capital to make a quality product.  Let me explain.

If you are an expert in some area of study within higher education you are probably employed as a professor at a college somewhere.  The criteria by which you are measured is 1) the number and quality of research publications you produce, 2) the number and quality of courses you teach, and 3) the service you provide to your department and the college community more generally.  At the more prestigious universities the requirement for research far outweighs the other two, at liberal arts colleges there is more balance.  Particularly as a young professor trying to make tenure, you should put the preponderance of your energy into conducting your own research.  Publish or perish is not just a saying. at an R1 it really doesn’t matter how good a teacher you are – if you don’t have a distinguished publication record you get fired.  I have even heard stories that at some top tier programs untenured profs are actively discouraged from putting effort into teaching, or even denied tenure, because it is taken as evidence they don’t take their research seriously enough.

(Why is this? At least part of it is because the ratings system gives so much weight to reputation and reputation is won through research)

The incentives for an academic are therefore to put his/her energies into research and skimp on teaching.  If untenured profs have little incentive to put work into the classes they are teaching to live students, why would they put any effort into creating online courses on spec to hypothetical future students?  It would just be a distraction that would divert them from the real task at hand and could result in them being denied raises or promotions in the future.

But that’s not the end of it.  There are some people are just interested enough in online teaching that they are willing to put together courses even taking account of these risks.  But if you have looked at any online courses on Coursera or other sources, you’ll see that they just are not very good.  The reason is that college professors have a narrow set of skills that don’t encapsulate everything you would need to have a quality online higher ed experience.  Professors are experts in their subject matter, but they are usually not experts in pedagogy, and they are almost never experts in online pedagogy, not to mention design, remote assessment, gamification, animation, documentary film-making, intellectual property law, and just general web production that would be necessary to make online courses truly revolutionary.

Based on this, I anticipate that we’ll be much more likely to see the revolution in higher ed led by either the universities or the publishing houses.  These groups have a better sense of academic incentives and are less likely to fall into this false premise of the ‘platform’ model that ‘if you build it they will come.’  To get a quality product, some entity is going to have to provide professors with capital up front to produce it, both in terms of monetary resources and in terms of access to teams of other experts to help with all those aspects of course design that any one individual probably does not have.

Sorry for the sloppy writing. This was written very quickly because, as an academic, I really have to get back to my research.

Alternatives to lecturing in college classrooms

[Note: This post was originally written for the UNL political science grad student blog]

Tomorrow I will be presenting to the UNL grad students on teaching skills and I thought I would put a few things on the blog to serve as a reference or as a starting point for those who want to look more deeply into a few of the points I will raise.

The big point I want to make is that lecturing is often not a good way to facilitate learning, particularly when used as the sole instructional strategy.  Lecturing is comforting to instructors because it gives us complete control over the classroom.  It can create the illusion of more successful teaching because we think we are better able to prevent digressions or misunderstandings.   And students tend to be comfortable with it because they don’t have to do any work.  But it’s also the case that students don’t usually learn much in a lecture unless application tasks are mixed in with the more basic information transmission.

Let me start with an anecdote.  A few months back the political science blog Duck of Minerva linked to a study in the biomedical literature on modulations in cognitive effort over time. In essence, the study hooked a college student up to a device that measured how much his/her brain was working at any time and watched the pattern over the course of a week. It turned out that this student used less brain power while sitting in lectures than s/he did while asleep!

An interesting thing about this finding is how astounding this is to us when we consider it as  teachers, and how obvious this is when we consider it as current students.  One thing about being grad students is that we are not that removed from undergraduate lectures and we can perhaps more easily remember the experience of sitting in large lecture halls, taking a required intro class, and vaguely listening to someone read their notes to us.  Even though being grad students we tend to be a motivated sample of the student population, I bet almost all of us can relate to the saying that “Lecturing is a way of passing the information in the lecturer’s notes to the student’s notebook without passing through the head of either.”

So what exactly is the problem here?  The problem is that learning does not come about solely from listening.  Consider any skill or body of knowledge in which you can consider yourself proficient.  How did you get that way?  I guarantee it was not from simply listening to someone talk about it.  Whether it’s cooking or golf or running regressions or analyzing Supreme Court opinions, the only way to become proficient in anything is to actually do it.  A lecture, at least on its own, does not require students to do anything.  If you place too much weight on lecture as a pedagogical strategy you should not expect your students to be any more competent at thinking about politics than you would expect of a painter that never put a brush to canvas.

One of the major voices in “active learning” is Harvard physics professor Eric Mazur.  Here is a nice piece describing Mazur’s work on interactive learning and the “flipped classroom.”  The idea of the flipped classroom is that information transmission (getting facts and concepts into students’ heads) occurs outside the classroom via readings, videos, etc., and application is done in class.  In other words, students do the sorts of things we traditionally think of as homework in class, and take in info (as we traditionally conducted lecture) outside the classroom on their own time.

Here is Mazur explaining these ideas:

 

This approach obviously requires students to do their reading outside class – something that most students simply do not do.  In a future post I will talk about strategies for getting students to read, particularly motivating through the use of puzzles, and the use of Just in Time Teaching (JiTT) questions.

Google’s amazing visualization of the small arms trade

It’s available here.

I have often thought that academics could make some real progress in making our work interesting and relevant to the public by identifying ways to present our research other than regression tables and dense jargon.  Efforts like this one on small arms are exactly on the right track.

Even if we don’t have the resources to make visualizations like this, there are ways to make regression tables much easier to interpret for people who haven’t taken a lot of statistics classes.  This paper by Jonathan Kastellec and Eduardo Leoni provides some nice suggestions

More on economic voting

The New York Times’ Economix blog had a piece today relevant to my previous post on the way that the national economy supposedly drives voting.  The gist of it is that expert estimations of the state of the national economy are often inaccurate and sometimes substantially so.  We are still revising our estimates for what the state of the economy was in 2009, and it turns out that some of our earlier estimates were off by a lot.

 

How again are lay persons making voting decisions based on national economic conditions when even the experts do not know what those conditions are until years later?